Court Ruling May (or May Not) Pave the Way for Legal Ripping Programs

On Friday, a Federal Court of Appeals judge issued a ruling (read the PDF) with potentially important implications for music and movie rippers. In the case of MGE UPS Systems Inc. vs GE Consumer and Industrial Inc, the court ruled that GE employees did not violate the Digital Millenium Copyright Act (DCMA) when they bypassed security dongles in order to repair some of MGE’s uninterruptible power supplies.

In his opinion, Fifth Circuit Judge Emilio M. Garza wrote that “merely bypassing a technological protection that restricts a user from viewing or using a work is insufficient to trigger the DMCA’s anti-circumvention provision. The DMCA prohibits only forms of access that would violate or impinge on the protections that the Copyright Act otherwise affords copyright owners.”

The long-held belief about the DMCA is that it makes circumventing copyright protection illegal, even if the user would otherwise have the right under “fair use” to copy the material in question. Now, many bloggers are interpreting Judge Garza’s ruling as potentially opening the door for programs like RealDVD, which was discontinued after an MPAA lawsuit, even though the software was designed only to backup DVDs for those who bought them, while maintaining their copyright protection.

For example, TeleRead’s Chris Meadows writes “If I’m reading this right—I’m certainly not a lawyer, after all—and a higher court doesn’t toss this ruling out, it could very well become explicitly legal to break DRM for the purpose of making ‘fair use’ of media you already own—ripping your DVDs to play on your iPad, or breaking DRM to read your Mobipocket book on your iPhone. The DMCA would be effectively defanged.”

However, it’s not at all clear that this ruling means what they think. We’re not lawyers, but the following text from the ruling seems to imply that the scope of this decision is very limited:

MGE’s dongle merely prevents initial access to the software. If no dongle is detected, the software program will not complete the start-up process. However, even if a dongle is present, it does not prevent the literal code or text of MGE’s copyrighted computer software from being freely read and copied once that access is obtained; there is no encryption or other form of protection on the software itself to prevent copyright violations. Because the dongle does not protect against copyright violations, the mere fact that the dongle itself is circumvented does not give rise to a circumvention violation within the meaning of the DMCA.

We bolded the relevant sections here, because it seems to us like what the judge might be saying here is that the reason he ruled in favor of GE is because MGE’s dongle didn’t prevent copying of the software, just viewing of it. By contrast, DRM-protected movies, games, and music all use copy protection that a user would have to bypass in order to copy them. And programs like RealDVD enable copying, not just viewing, of copyrighted works.

The official Geeks Geek, as his weekly column is titled, Avram Piltch has guided the editorial and production of Laptopmag.com since 2007. With his technical knowledge and passion for testing, Avram programmed several of LAPTOP's real-world benchmarks, including the LAPTOP Battery Test. He holds a master’s degree in English from NYU.

Yeah, sadly I think this says that you can’t combine a 2 part system using hardware to restrict code which can be freely copied without it. What they did was create a software key which would report the presence of the dongle to be able to read the screen. Because there was no attempt to prevent the code from being copied, just used, they didn’t violate the DCMA.

Sadly I don’t see how this will actually defang the DCMA since this is a very limited technical ruling which doesn’t seem to apply to any sort of file sharing or fair use. It does however stop companies from selling their customers something, then claiming they can’t have full access to it because unlocking a feature, like seeing how much battery time is left, would require a thing (whatever it might be), and then claiming that reverse engineering that thing would violate the DCMA.

If anything it has implications about jail breaking phones. Not copying files.